Tuesday, July 31, 2012

Even if you're the straightest, whitest, most Christian couple in the entire state of Louisiana, you don't have the legal right to marry. Not really.

It's not that you lack the right to conduct a government-approved ceremony and obtain the legal status of a married couple; you can do that. You can even file your federal tax returns as a married couple, as long as you don't have matching genitals. But nowhere in the United States do you have the right to credibly contract for a lifetime marital partnership.

Every state currently allows some form of "no fault" divorce - divorce not based on any wrongdoing of a party, but simply because the parties claim they don't want to be married anymore. Even though the couple may "vow" to remain together until one of them dies, everyone knows these vows have no legal or real-world effect. The marital "contract" is not a contract at all.

Imagine a regular legal contract in which either party could end the agreement by saying he didn't like it anymore. Could the purposes of contract law be served by such a contract? From a law and economics point of view, such an "if-I-feel-like-it" contract would not support the reliability of contracts, and would require an inefficient level of hedging. The legal term for such a contract is an
illusory contract
- one that doesn't have any legal effect, of which the legal system will take no notice.

Marriage once did have a legal effect - once married, parties could not divorce without a really good reason (physical cruelty, desertion, or adultery). Not coincidentally, marriages were much more likely to be reliable lifetime partnerships. In addition to the legal strictures surrounding marriage, social groups essentially forced couples to stay together or risk social death.

With the nationwide adoption of no-fault divorce and the elimination of the social stigma of divorce, the nature of marriage changed from a genuine contract to an illusory contract. Marriage stopped being the reliable, socially enforced lifetime partnership it had been for generations.

Poly people might be tempted to think of the destruction of socially enforced monogamy as a good thing. Indeed, many people who did not really want to marry were no doubt forced to do so, and forced to stay married, because attractive options did not exist.

However, even poly people must on reflection realize that an important right has been lost: the right to reliably, credibly commit oneself for life. Even those who think polyamory is the best choice for them rarely want to force their lifestyle on others; indeed, they are often some of the most vocal supporters of expanding the right to marry to gay people. Sadly, however, in allowing anyone the right to
divorce
at will, we have deprived everyone of the right to truly marry.

Sensing that marriage is now an empty institution, some couples have specifically contracted for the rights marriage traditionally gave them (but no longer does). In the California case
Diosdado v. Diosdado, 97 Cal.App.4th 470, a husband and wife contracted that if the husband had an affair with another woman, he would pay the wife $50,000 on top of the divorce settlement, and vice versa. The husband did in fact have an affair, but the California court refused to honor the couple's agreement. The strong California public policy of no-fault divorce, the court said, prohibited courts from even enforcing the voluntary contracts of a mature adult couple:

The family law court may not look to fault in dissolving the marriage, dividing property, or ordering support. Yet this agreement attempts to penalize the party who is at fault for having breached the obligation of sexual fidelity, and whose breach provided the basis for terminating the marriage. This penalty is in direct contravention of the public policy underlying no-fault divorce.

That's right: in California, as in other states with a strong no-fault public policy, you can't even voluntarily make a credible promise of marriage and expect it to be honored by the courts.

A few states - Lousiana, Arizona, and Arkansas - allow what is called "covenant marriage," marriage that may only be dissolved on fault grounds. However, couples may not even use covenant marriage to credibly promise lifetime partnership, because either partner may simply relocate to a non-covenant-marriage state and initiate no-fault divorce proceedings there.

To recapitulate, no one in our country truly has the right to marry, in the sense of committing oneself to a partnership for life. It is legitimate to wonder if this deprivation of rights has caused the proliferation of both tattoos and ludicrously expensive wedding ceremonies, as a last-ditch effort for permanence.

Not even mature adults of sound mind, after long reflection, may decide to marry for life. However, there is another right that has been found to be so fundamental that it cannot be taken away, even from those who have demonstrated that they will abuse the right: the right to breed. The right to have children, like the right to marry, is not mentioned in the Constitution, but is interpreted as protected by the implied right to privacy. However, unlike the right to marry, the right to breed has been genuinely preserved. Mothers who starve their children to death,
Trammel v. State, 751 N.E.2d 283 (Ind. Ct. App. 2001), and fathers who make no effort to support their children,
State v. Talty, 103 Ohio St.3d 177 (2004), may not be restricted in their "fundamental right" to have as many children as they can.

It is sad for all of us that the law protects the right of each person, no matter how cruel or stupid, to create new, needy, suffering human beings; but no person, no matter how mature, is trusted with the right to credibly commit him- or herself to marriage for life.

44 comments:

Until the second-last paragraph, I was wondering what point you might have been getting at.

I find these "right to have children" and "right to marry" distinct enough that I think this is a non-sequitur. In any case I don't think anybody should have either of these rights! The former almost unconditionally, and the latter until neuroscience advances to the point that it can reliably predict indefinite mutual love (and even then exceptions should be made for brain damage occurring during a marriage).

Glad I'm preaching to the choir in your case re: breeding. As for marriage, I think a few things are relevant, especially for consequentialist-leaning types:

1. Happiness studies consistently show large happiness effects from marriage. Married people are happier than single people; married parents are MUCH happier than single parents.2. Divorced people take a major happiness hit; they are less happy, on average, than people who never married.
3. Marriage may be ESPECIALLY important for tribeless moderns, who have fewer social bonds to rely on - obligatory moves for college and work, etc.

It has become somewhat taboo to suggest that being a single parent is a bad thing. Studies on outcomes from single versus partnered parents tend to find little difference -
when they control for things like income. But, of course, marriage directly affects and is affected by just those variables - income, education, neighborhood, etc.

You're definitely not the only one who found this a "non sequitur" - and that response surprised me. Marriage and children don't seem related to modern people! Wow!

In addition to observation and common sense that single parenting sucks both for the parents and for the kids (NYT piece), there's another datum I find important:
parental rejection
seems to be a significant predictor of bad personality outcomes.

What I'm emphasizing here is that while our governments and societies don't trust us with the right to choose a romantic partner for life and commit to that decision, they trust even the stupidest among us with the right to create children, something that will negatively affect our own happiness and bind our actions for years, if not life. But lifetime marriage isn't only a right we ourselves are deprived of; those children we're entitled to create are deprived of the ability to benefit from a credibly contracted lifetime parental partnership.

"the latter until neuroscience advances to the point that it can reliably predict indefinite mutual love"

Do you think we need a standard this high to make allowing marriage a net positive? It's possible, but far from obvious, at least if we're talking about lives of a few decades (maybe you're not). (Or do you think the costs of bad marriages should be given far more weight in deciding policy, or something else?)

"Divorced people take a major happiness hit; they are less happy, on average, than people who never married."

Sure, but that's not really the right comparison. In the absence of no fault laws, I bet the majority of divorced people still would have gotten married. So happiness among never married folks aren't really counterfactuals for happiness among divorced folks, even if you control for a bunch of variables. I think research on happiness related to marriage and religion suffers from many of the same problems as research on diets.

Interesting observations that there's no "right to marry" in the sense of total lifelong commitment without an option for unilateral dissolution or even a bilateral no-fault dissolution.

But look at this way: By marrying you give up a lot of rights and freedoms, which you can only regain by divorce. In a "covenant marriage", you have no way to regain those rights, giving them up permanently.

Even so, before no-fault divorce was legal, many couples would create legal fictions around adultery or cruelty to obtain an at-fault divorce from the court. Generally the husband played "at fault". So bilateral divorce was possible with the married couple jointly deceiving the state. I suppose unilateral divorce is possible by fault (very costly and not even reliable), or manipulating your partner into fault and then suing for divorce. The most you could say is that there was no honest way out of marriage before no-fault divorce.

Meaning, what we have now is a state where you don't have "the right to permanently give up your rights" (barring using deception to get them back). I think that's a good thing.

It's in-line with a long tradition in which individuals have less and less been able to sign away their rights and freedoms and protections. For example, indemnity forms that sign away one's right to sue for damages caused by gross negligence, are now widely unenforceable.

On the other hand, corporations and other legal persons can sign away pretty much all of their rights. In a sense, natural persons are treated by law as less competent than legal persons, and given a bit of paternal state protection against their own foolishness.

The post did not segue well into the "right to breed" paragraph - it reads as an apples-to-oranges comparison. Probably would be better as a separate post, with space to draw out the analogies you want to make.

When you say "no right to give up rights" is a good thing, how do you mean that? Good, on average, for happiness? Or good even though it reduces happiness?

I see the suicide question in similar terms: the right to commit suicide is the right, essentially, to give up future rights. Non-suicidal people might think it's a great thing to be forced to not give up future rights; but suicidal people see that being forced to "keep" your future rights is a major welfare hit. Similarly, I have only thought of marriage in these terms since being in a serious monogamous relationship for the past year with an intellectual equal.

Completely agree that natural persons are deprived of rights out of paternalism. That's my point: paternalism prevents real marriage, but it's hands-off with BREEDING, which has much more serious consequences both to the parents and to the children. If there's paternalism for marraige, it should apply doubly to breeding.

You want the right to give up future rights (covenant marriage, suicide).. but how do you want to handle human fallibility? People make mistakes. Some people really do know, for sure, that they want a lifelong covenant marriage, but many people change their minds later. Exhibit A: the many couples who perjured themselves in the early-to-mid 20th century get around the lack of no-fault divorce.

Similarly, some people really do know, for sure, that they want to die, but many people change their minds later. If those people were permitted legal suicide now, they could not change their minds due to being dead.

What then do you propose?

I think the special treatment for breeding is due to its status as a primary biological function. In most people's eyes, placing conditions on the right to breed is like placing conditions on the right to breathe. Right or wrong, that's how it's perceived.

Culture is upstream from the law (and one may add, biology is upstream from culture). Given this, the solution to the modern impossibility of a lifetime marriage bond is not to fixate on no-fault divorce, or even the 'right to marry', but to consider the conditions which allow for social enforcement of the marriage bond and of bonds in general.

Those conditions originate in a cultural sense of the sacred, which created taboos and invested divine authority in the law, without which it had no power. Sadly, the disenchantment of the world which has proceeded under the guise of progress has effectively banished the possibility of returning to the sacred and ergo a time when the marriage bond was enforceable in any real sense, and so there is actually no present available solution. Enjoy liberal individualism while it lasts (not long).

Absolutely agree. As I often say, we are better at poking holes in sacred bullshit than at building sacredness structures that can support our happiness and flourishing. I doubt that a return to fault-based divorce would work, since we have also lost the sense of sacredness of marriage, and also the traditions for making good marriage choices.

I don't know. I think there's a much better case to be made for gay traditional marriage than for stupid modern fake marriage excluding gays, but I'm a brainwashed liberal bisexual so it's hard to sort out.

There's that Mormon gay guy who is out but has a monogamous Mormon wife and kids. That seems to work for some people.

I have a harder time seeing how allowing gay people to marry would harm marriage, but I find it easy to see how allowing people to divorce at will effectively destroys everyone's ability to marry. Thoughts?

If you're wondering how gay marriage would harm hetero marriage you're asking the wrong question -- the debate over gay marriage has nothing to do with whether 2% of 2% of the general population gets to play 'house' within a government-affirmed legal contract. There is effectively no actual consumer demand for gay marriage qua gay marriage.

Instead, like no-fault divorce, the brouhaha over gay marriage is merely a symptom of a cultural transition, which to some appears as a declension and to others appears as a step forward in history (I prefer the former). Conservatives are terrible at distinguishing causes from symptoms, which often results in asinine culture war rhetoric, but liberals fare hardly better.

The reality is that monogamous life-term marriage is no longer theoretically feasible within desacralized, modern mass society. It persists solely out of inertia. Many people sense this, which is why they have become (perhaps irrationally) hostile to phenomena which seem to signal greater desacralization, of which gay marriage is merely one example.

I agree with you and have made the same points in conversation from time to time. I also think there's strong evidence that the out-of-sight poor have been especially hard hit by liberalized divorce law and attendant cultural changes that took root in the 60s and 70s. The argument is made forcefully in Charles Murray's "Coming Apart" by reference to longitudinal data showing that while middle and upper-middle class people have largely bounced back from the first wave of liberalized divorce, poor people are now more likely than ever to split up, or never get married at all. I know a lot of people think this is not a big deal, but a lot of people, as Murray points out, live in bubbles. None of it would matter were there not good reason to believe that traditional marriage provides many people with a sense of meaning and well being that would otherwise not be available, but I think it wise to consider that the disintegration of the institution could have been harmful in ways that are too readily dismissed by liberal intellectuals.

I asked the question I asked because the best argument against gay marriage that I've heard goes something like this: Since marriage has already been severely undermined by "no fault" precedent and by the removal of the stigma that once attached to divorce, the specter of same-sex marriage may be the final straw that removes whatever remaining value the institution has for those who stand to benefit from it. From a certain vantage (which I generally share), it is easy to scoff at this type of argument, but just because something seems silly or offensive to "enlightened" people doesn't mean that the negative effects aren't real.

I should make clear that I have no moral problem personally with same-sex marriage, and I think it follows under equal protection jurisprudence. At the same time, I grew up thinking of homos -- at least gay men -- as cultural outlaws, so it seems odd to see this emerge as the civil rights issue of our age. It's like if Harry Callahan turned in his badge and began a second career as a gun control lobbyist.

"Imagine a regular legal contract in which either party could end the agreement by saying he didn't like it anymore."

Do states (all or any) allow
unilateral
no fault divorce? That seems like a really bad idea, but I didn't think that was the case. If it's only bilateral no fault divorce that's at issue, it's more difficult. I'm not a lawyer, but my understanding is that it is generally acceptable, when all parties agree, to make changes to earlier contracts. Are some contracts unalterable? If so what are the legal conditions that determine when an unalterable contract can be made and/or enforced, and what is the mechanism for enforcement?

I can see the value of making unconditional irrevocable commitments. Indeed, there is a large literature on time inconsistency which suggests that there is such a value. But to what extent has the law ever (outside of marriage itself, before there was no-fault divorce) made provision for such unconditional irrevocable commitments? And to the extent that it ever has, outside of institutions like marriage in which there was a social stigma associated with violating the commitment, how could such commitments ever be enforced if there was no criminal activity involved? Who would sue someone for breaking an agreement that they also preferred to break?

Some states technically allow only bilateral no-fault divorce, but in practice, if one spouse doesn't want no-fault and demands to stay married, the courts bend over backwards to find grounds to grant the divorce on a fault basis. I've seen a case from one of the Dakotas where the husband won't consent to a no-fault divorce, and the court grants a fault-based divorce on cruelty grounds to the wife essentially because the husband is a Jehovah's Witness and tells the kids mom is going to hell.

Contract law in general allows everyone to break commitments with no penalty as long as they pay for the damage they cause. When parties agree, absolutely they can reform/rescind the contract. But contract law is not very harsh even for breaching parties; they must simply pay for not doing what they promised. Of course, there are reputation effects...at least, there used to be.

I'm not sure marriage should be treated exactly like a contract; perhaps there should be even more enforcement of marriage. But as of now, marriage isn't EVEN treated as an enforceable contract. It's usually just nothing.

Lifetime commitments are pretty hard on future selves... It doesn't seem that the possibility of such commitment in the form of marriage is necessary for society to function, so I think vis-à-vis future people, you'll have a hard time arguing for traditional marriage.

Promises are different in that they are usually more short-term, and they are in fact needed for social relations to work, I suppose. But I think it's not fair to demand that promises be kept that later turn out to be overdemanding.

"I actually believe in consent as a necessary feature of a free society."

That's cute. Meanwhile, in the real world, where real people with real problems live, 'consent' is a fiction that many would -- and do -- gladly surrender in exchange for security and happiness. Then there is the question of who or what validates consent, which in the final analysis is whomever or whatever maintains the dominant jurisprudence, and which is something which we did not 'consent' to ourselves.

Besides, even liberal theorists like Rawls acknowledge the importance of obligation. Once one voluntarily participates in the benefits of a just society, so he argues, one is obligated to yield some measure of consent, just as the founders of that just society yielded their consent for the sake of political cooperation. The analogy to marriage remains to be drawn out here.

What if being forced into traditional marriage makes people happier, on average, than our sorry liberal asses?

Then it just depends really on how you feel about paternalism, I guess. I just have pretty strong anti-paternalist feelings, hence my not-quite-thought-out reaction to it.

Also the break-ee doesn't consent to being single.

I can't get that voice in my mind to shut up that says "that's their problem". Next we're forcing people to
start
relationships because of all the poor single people. Wait. We used to do that, didn't we?

Which, I think, brings us to an important issue: We must distinguish between discussion whether society should be such-and-such and whether we should immediately turn society into one that is such-and-such. Throwing people as they are now into a more traditional society may cause massive suffering, even though the suffering in such a society once it is firmly established with people growing up in the culture and all is lower than what we have now. And the trouble with discussing such things is that your intuitions are inevitably about the former, whereas I think the target of your discussion is the latter.

On another note, I think the argument for a right to (truly) marry essentially requires a moral theory which doesn't work with the concept of a right, which is kind of ironic. Of course the right to marry you're talking about is legal, so it's not contradictory. But still ironic.

Needless to say, I agree with your implicit assertion that there shouldn't be a right to procreate.

So this post points out that there are some features of traditional human society which may be extremely weight-bearing for happiness that have been perhaps irretrievably screwed up by modernity.

I'm paleo enough to engage in romanticizing the past (plus I grew up on a farm with no electricity or running water, and we grew/hunted most of our food, and it was AWESOME), but let's not forget that the past mostly sucked too, just in different ways.

We can't go back
- for one thing, there are way too many of us to be supported in simple societies; for another, the cultural traditions necessary to support simple societies have not been adequately preserved. But also, simple societies had major disadvantages, like constant violence.

I do not think human life has ever been so good as to guarantee a good life for a child enough to justify a birth. However, pragmatically, it's interesting to investigate what has changed and how it has affected the distribution and absolute levels of happiness, distress, satisfaction, misery, etc.

So I want to make it clear that I'm not advocating a "return" to earlier ways of living simpliciter; I do think the possibility of making a lifetime marriage commitment should be a right, perhaps limited in (fair) ways. But marriage doesn't exist in a vaccuum; rather, it's a supporting part of a society-wide, gigantic design problem.

No one knows how to make a happy, functioning society (though lots of us think we do). The first step toward improving society might be admitting this basic fact.

What is it exactly that appeals to you about a marriage contract that you would not be allowed to break? Is it the sharing of financial resources? I can see that in the sense that two people who have made a financial decision to share a life together can have a higher standard of living by pooling resources, and maybe feel more comfortable and secure knowing their partner can't just back out at any time.

Is this mostly your line of thinking here? Outside of financial reasons, what do you consider to be the advantages (from a legal/contract point of view) of such a marriage as what you describe here, as opposed to just a non-legal agreement that you want to share your life with another person? I know some couples that have been together for years and enjoy their lives together even though they are not legally married.

One thing I can think of, which makes married people -- who have reduced their own freedom -- happier than others is that they can "blame" the marriage / spouse for shortcomings in career or other pursuits. Even if others get to say 'youchose
to get married', fact is the married person can at least tell that to themselves and get relieved of guilt.

I had a friend who stayed in a horrible marriage and he used to say he was glad he just didn't have to think about that aspect of life anymore - like he'd made his choice, and could use his cognitive resources elsewhere. I dont know if that's what you're getting at, or if it was a good choice in his case, but it seems like a serious consideration.

Given that marriage is an explicit, specific, and public (though perhaps legally unenforceable) commitment between people who presumably know each other well and trust each other, why is individual conscience not sufficient to enforce the commitment on either side? I would suggest:

1. If you don't trust someone to honor such a commitment, you probably shouldn't be marrying them in the first place.

2. If your trust turns out to be misplaced, it's probably not in your interest to continue being married to them. (My understanding is that the law still protects, or at least attempts to protect, your critical economic interests, such as avoiding being left with no means of support if the other party had become your only means of support.)

3. Perhaps people just don't take the commitment seriously, but this is something they ought to discuss before getting married. If it's understood from the start that they do take it seriously, then
dictum pactum est, and a unilateral divorce would happen only in one of the following cases:

a. Both parties have agreed to divorce, but it's more convenient to effect it unilaterally.

b. One party is highly untrustworthy.

c. The other party is actually at fault, but it's more convenient not to specify the fault explicitly.

If people who know each other well cannot trust each other's solemn word, we have bigger problems than the lack of a technology for lifetime commitment.

I see personal experience as a springboard for abstract reflection and hopefully insight, rather than reductively explaining positions. But that said, this train of thought was insprired by how fantastically awesome my present relationship is! <3

As a practical matter, even though American divorce is unilateral no-fault, it is "no penalty" only for women. American divorce courts almost invariably penalize men (only) financially and by depriving them of access to children, which is why educated American women initiate divorce nine times as often as men-- the women expect to keep the children and much of the (ex-) husband's money ( http://en.wikipedia.org/wiki/Divorce#Gender_and_divorce ).

So American men still have the right to make a commitment which they may break only at severe hazard, but women don't; indeed, they are incentivized to make false commitments and breach them for gain!

Perhaps that is one reason that with the rise of no-fault divorce AND mandatory child support, children now increase the likelihood of divorce. Mercenary and of course no one is "like that," but incentives matter.

"We have found that who gets the children is by far the most important component in deciding who files for divorce, particularly when there is little quarrel about property, as when the separation is long."